Proposed Regulations From the EEOC on the Pregnant Workers Fairness Act (PWFA) Expected To Go Into Effect Soon

Earlier this year, clients were alerted to new federal laws providing greater protections for pregnant and nursing employees. Proposed regulations from the Equal Employment Opportunity Commission (EEOC) are expected in the coming weeks or months that will guide employers in their obligations under the newly passed Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Both acts were signed into law by President Biden on Dec. 30, 2022. The PUMP Act becomes effective on April 28 and the PWFA takes effect on June 27. Employers should update their employment policies, as needed, to comply with these new federal laws.

Regulations Recapped

• • The PUMP Act bolsters protections to a 2010 law requiring employers to provide nursing, non-exempt workers reasonable time to express breast milk in a private location other than a bathroom. Specifically, the PUMP Act extends those same rights to exempt employees and further requires employers to pay employees for their time expressing breast milk if the employee is performing their regular duties at the same time.
  • The PWFA further provides accommodation protections to pregnant or nursing employees that are similar to the accommodation protections found in the Americans with Disabilities Act (ADA).

Under the PWFA, employers with 15 or more employees will now be required to engage in an interactive process with pregnant and/or nursing employees and make reasonable accommodations for any pregnancy, childbirth or related medical condition—so long as such accommodations do not pose an undue hardship on the employer.

The PWFA’s accommodation provisions are aimed at filling in gaps left open in The Pregnancy Discrimination Act (PDA) of Title VII which generally protects employees from discrimination on the basis of pregnancy.

Though the EEOC has already provided answers to frequently asked questions on the PWFA, it has not—until recently—indicated when it will issue regulations to accompany and carry out the new law.

Rollout of the Regulations

The PUMP Act is set to take effect at the end of this month, on April 28 and the PWFA is set to go into effect on June 27. Last week, an EEOC official indicated at a Chicago-based employment conference that the agency expects to issue such regulations in the coming weeks or months. This leaves employers with just a few weeks to revise their employment policies and handbooks to make sure they comply with the new laws.

Focus on Enforcement

It is clear the EEOC intends to focus enforcement efforts on both the PUMP Act and the PWFA, as evidenced by an April 12 press release by the agency regarding a $400,000 settlement with a nursing facility that was alleged to have violated the PDA.

In that case, it was alleged that the employer implemented a policy requiring employees to inform the company when they are pregnant and obtain a doctor’s release before returning to work without restrictions. The agency’s position was that employers cannot require pregnant employees to subject themselves to medical exams simply to remain employed or treat them worse than non-pregnant employees.

The EEOC further maintained that the employer denied reasonable accommodations to pregnant employees and terminated them while other employees with similar restrictions were provided accommodations. The EEOC’s press release can be read as a strong indicator of an increased focus by the agency to ensure the PUMP Act’s and PWFA’s accommodation and other pregnancy and nursing protections are complied with by employers.

Next Steps for Employers

Employers should stay tuned for forthcoming proposed regulations from the EEOC on the PWFA and revise their employment policies as needed to comply with both the PWFA and the PUMP Act.

Please contact any member of Phelps’ Labor and Employment team if you have any questions or need compliance advice or guidance.